Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:06-cv—00371-G|\/IS Document 31 Filed 08/23/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
COLUMBIA HOUSING/PNC §
INSTITUTIONAL FUND IV LIMITED § NO. 06-371
PARTNERSHIP, COLUMBIA §
HOUSING SLP CORPORATION, §
OCWEN 2000-LLC, PNC BANK, and §
COLUMBIA HOUSING/PNC §
FUND IV, INC., §
§
Plaintiffs, §
§
v. §
§ I I
OCWEN FEDERAL BANK FSB, §
OCWEN INVESTMENT §
CORPORATION, and OCWEN §
LOAN SERVICING, LLC, §
§
Defendants. §
REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SUR—REPLY
Plaintiffs Columbia Housing/PNC Institutional Fund IV Limited Partnership ("PNC Fund
IV"); Columbia Housing SLP Corporation (“Columbia SLP"); Ocwen 2000·LLC ("‘Ocwen
2000"); PNC Bank; and PNC Fund IV, Inc. (Fund IV, Inc.”) (collectively, "Plaintiffs") file this
Reply in Support of their Motion for Leave to File Sur-Reply (the "Motion for Leave,"
Docket 28).
I.
In their response (the "Response") to the Motion for Leave, Defendants do not deny that
their Motion to Dismiss reply brief (Docket 22) contains both alleged factual information and
substantial legal arguments that were not originally presented by them in their Motion to
Dismiss. Instead, Defendants argue that they simply "appropriately responded" to Plaintiffs’
opposition arguments. Far from appropriately responding, however, Defendants improperly
argued affirmative defenses that they have not yet pleaded (ag., waiver, equitable estoppel, etc.),

Case 1 :06-cv-00371-GIVIS Document 31 Filed 08/23/2006 Page 2 of 4
introduced a second Affidavit of Michael Mosher in support of such arguments, subsequently
submitted a second affidavit to David Ho, and made additional argument not contained in their
original motion. (Docket 23, 27). Because of these facts alone, and to provide Plaintiffs an
opportunity to respond accordingly, the Court should grant the Motion for Leave.
Defendants also maintain in the Response that Plaintiffs desire to use the Sur—Reply as a
means by which to somehow reverse their argument. Quite the contrary, Plaintiffs have
consistently maintained that a factual challenge to a Motion to Dismiss is inappropriate where, as
here, an answer has not yet been filed, and, alternatively, that if the Court were to consider the
parties’ material factual dispute (as evidenced by the significant volume of briefing in this case),
it should deny the Motion to Disrniss and decide this case on the merits. Nothing contained in
the Sur-Reply supports Defendantsf contention that Plaintiffs have in any way °‘reverse[d] field."
(Response at 3, § 1).
Defendants also chastize Plaintiffs’ Sur-Reply for relying "so1ely upon a cite to Moore’s
Federal Practice? (Response at p. 3, §2). Plaintiffs pointed out that Defendants’ Motion to
Dismiss, on subject matter jurisdiction should not be granted where jurisdictional facts are
intertwined with the merits. Defendants don’t contend that the proposition stated in Moore’s is A
inaccurate. Among the cases which support the conclusion in the treatise are Safe Air for
Everyone v. Meye1·, 373 F.3d 1035, 1039-40 (9th Cir. 2004); Valentin v. Hospital Bella Wsta,
254 F.3d 358, 362-65 (lst Cir. 2001); Barrett v. United States, 853 P.2d 124, 131 (2d Cir.), cert.
denied, 488 U.S. 1041 (1988); Daniel v. Ferguson, 839 F.2d 1124, 1127 (5th Cir. 1988); Adams
v. Bain, 697 F.2d 1213, 1220 (4th Cir. 1982); McBeai/2 v. ]nier~Ainerican Ciiizensfor Decency
Committee, 374 F.2d 359, 363 (Sth Cir.), cert. denied, 389 U.S. 896 (1967), as well as a case
cited by Defendants, Mortensen v. First Fed 7 Sav. & Loan Ass ’n, 549 F.2d 884, 893-94 (3d Cir.
2

Case 1 :06-cv-00371-GIVIS Document 31 Filed 08/23/2006 Page 3 of 4
1977). Plaintiffs also note that Defendants boldly assert that no material factual issues exist in
this case and then spend a nearly two pages of their Response addressing arguments made by
Plaintiffs in the Sur-Reply.
Thus, to the extent that the Court is willing to consider the parties’ factual arguments,
Plaintiffs respectfully request that the Court permit the filing of the Sur-Reply so that they may
respond to Defendants’ additional argument not contained in their original motion.
III.
For the foregoing reasons, Plaintiffs respectfully request that they be permitted to tile
their Sur—Reply.
August 23, 2006
300 Delaware Avenue, Suite 1360
Wilmington, DE l980l
(302) 425-0430
Of Counsel:
Charles L. Perry, Esquire
Andrews Kurth LLP
1717 Main Street, Suite 3700
Dallas, TX 75201
(214) 659-4681 ·
(/00030/]
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Case 1 :06-cv-00371-GIVIS Document 31 Filed 08/23/2006 Page 4 of 4
CERTIFICATE OF SERVICE
l, Michael G. Busenkell, certify that on August 23, 2006 l caused a copy of the
foregoing Reply In Support Of Motion For Leave To File Su1·—Rep1y to be served in the
manner indicated on:
Hand Deliverv
Domenic E. Pacitti (Bar No. 3989)
Saul Ewing LLP
222 Delaware Ave., Suite 1200
Wilmington, DE 19801
Facsimile and U.S. Mail
Joshua C. Krumholz
Holland & Knight LLP
10 St. James Avenue
Boston, MA 02116
Michael G.